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Read: CRITIQUE: THE REPUBLIC v HIGH COURT (COMMERCIAL DIVISION), ACCRA, EX PARTE: YVONNE AMPONSAH BROBBEY, GLADYS NKRUMAH (INTERESTED PARTY)

By Albert Gyamfi^[1]

INTRODUCTION

When a person dies, his movable and immovable properties devolve on his personal representatives with effect from the date of his death.^[2] Where a person dies testate, his personal representative is the executor(s) appointed by his will, but where the deceased dies intestate, it is a court that appoints his personal representatives; referred to as administrators. Until a vesting assent is issued by such personal representatives, the legal interest of the estate of the deceased is vested in his personal representatives as trustees of its intended beneficiaries.^[3] The personal representatives of the deceased therefore acquire the legal right to possess, administer or deal^[4] with the estate of the deceased to the exclusion of all other persons. Any person who takes possession of, administers or otherwise deals with the property of a deceased person may be guilty of intermeddling.^[5] Order 66 rule 3 of C.I. 47 establishes intermeddling as a criminal offence punishable upon summary conviction, to a fine not exceeding 500 penalty units or twice the value of the estate intermeddled with or to imprisonment for a term not exceeding 2 years or to both.

Although it is widely acknowledged that intermeddling is an offence, the challenge among lawyers and the bench had always been the proper procedure for the prosecution of such cases. While some legal luminaries argue that it is a criminal offence and can only be prosecuted by the Attorney General in the exercise of his powers under Article 88 (3) and (4) of the 1992 Constitution, others argue that intermeddling, just like contempt of court, is a quasi-criminal offence and may be dealt with summarily by a civil court upon an application.

Although the Supreme Court until the case presently under review had not resolved this dichotomy, conflicting decisions had been made by the Court of Appeal in the cases of Osei Kwaku and Another v Georgina Konadu Kusi^[6] and Eric Akwetey Siaw & 2 Others v Tetteh Siaw-Sappore & 2 others^[7]

^[1] Albert Gyamfi is a private legal practitioner at the law office of Totoe Legal Service. He is also a law lecturer at the Wisconsin International University College and the author of Principles of Commercial Law in Ghana.

^[2] See s.1 of the Administration of Estates Act, 1961(Act 63)

^[3] See Re Okyere (deceased) Peprah v Appenteng and Adomah (2012) SCGLR 65 at 75

^[4] Subject to liabilities for breach of their fiduciary duties

^[5] Order 66 Rule 3 of High Court (Civil Procedure) Rules, 2004 (C.I. 47)

^[6] (Unreported) Civil Appeal No. H1/11/2005 dated 22^nd April, 2005

^[7] (Unreported) Civil Appeal No. H1/177/2014 dated 16th June, 2016

OSEI KWAKU AND ANOTHER v GEORGINA KONADU KUSI

In this case, following the death of one Kofi Nsiah, the appellant herein, claiming to have been appointed by the deceased in his last will as an executor took out an originating process by way of notice of motion under the provisions of the Intestate Succession Law, 1985 (PNDCL 111) for an order punishing the Respondent for intermeddling with the estate of the deceased and also for an order compelling her to surrender certain specified properties of the deceased which were alleged to be in her custody to the applicants. An objection was taken against the process filed by the Appellant. The grounds of the objection were that the section of the applicable legislation under which the appellants issued the processes before the lower court created a criminal offence and therefore since the appellants were neither the Attorney General nor claimed to have initiated the proceedings with his, (the Attorney General’s), authority they could not initiate the action on their own against her as it was a criminal case. The trial court upheld the objection and dismissed the application on grounds of capacity.

Although, Order 66 rule 3 of C.I. 47 was not the provision under which the application was filed, Gbadegbe JA, (as he then was), who read the unanimous decision of the Court commented on the ruling as follows:

“I must observe, however that there is a similar provision in Order 66 rule 3 of the High Court Rules, CI 47. But since the section on which the application is based creates a crime, I think that the appellants could not by themselves have initiated what was in essence criminal proceedings; the power to do so having been vested in the office of the Attorney General of the Republic of Ghana. See Article 88 (3) and (4) of the 1992 Constitution. Further to this, I think that learned counsel for the respondent was right in his submissions regarding the form that a criminal trial should take in our jurisdiction. I am of the view that since the section on which the appellants relied created a criminal offence that is to be tried summarily…The result in my thinking therefore is that the application before the court below which sought to invoke its criminal jurisdiction was one that was incompetently instituted and thus rendered the proceedings before the court bad at law. I think that this was a clear instance of proceedings having been instituted without complying with essential statutory conditions namely the bringing of such an application by the Attorney General personally or proving that the application was initiated with his authority made under law. The said application was also fundamentally flawed in that the information on which the trial was to be based was not contained in a charge sheet that contained the statement of the offence together with its particulars, a condition precedent to the court’s exercise of its summary jurisdiction in criminal trials. The consequence of this default is that the application before the court below was thereby constituted into incompetent proceedings that rendered everything planked thereon ineffectual”.

The decision of the Court in essence meant that intermeddling was a criminal offence, and just like any other criminal offence had to be prosecuted at the instance of the Attorney General. The charges against the accused person must be contained in a charge sheet and must be regulated under the procedure set out under the Criminal and other Offences Procedure Act, 1960 (Act 30).

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LAND MANAGEMENT AS A COMPONENT OF SUSTAINABLE DEVELOPMENT: THE ROLE OF TRADITIONAL LEADERSHIP IN THE KUMASI TRADITIONAL AREA – MARIAM AGYEMAN GYASI JAWHARY (MRS)

By:Mariam Agyeman Gyasi Jawhary(Mrs)^[1] 

INTRODUCTION

I wish to commence this presentation by issuing a disclaimer. I make no claim to legal scholarship. I do not know what criteria the Faculty of Law applied when they decided to place me in the hallowed ranks of legal scholarship. However, having been manipulated and emotionally manoeuvred into accepting this invitation, I shall endeavour to discharge the task I have been entrusted with by sharing my thoughts with you on the topic:  Land Management as a component of sustainable development: The Role of Traditional Leadership in the Kumasi Traditional Area.

Given the composition of this audience I can assure you the language will not be too technical and I will be keeping it as simple as possible. I will be looking at what constitutes sustainable development, the history and trajectory of sustainable development, Asante customary tenure and land management structures and the enhanced role traditional leadership in the Kumasi Traditional Area can play in land management as a component of sustainable development.

I will set out that chiefs are important in the emergence of the private property acquisition since they are recognised as custodians of stool land, who have to rights to dispose of stool land and issue the relevant documents evidencing grants or alienations or disposition made by them to prospective developers in their capacity as allodial and sub-allodial owners of stool land.

This presentation will show that under the current legal regime, although the allodial interest is deemed to be the ultimate interest in land, its strength appears to have been broken by constitutional and statutory derogation from and constraints on the same.

I will make a quick comparison of the institutional arrangements made by government for land management in relation to traditional land tenure and question whether they do not have any impact on effective customary land management and development.

I will be arguing that the policy reform pursued over-strengthen the process of private acquisition of land as opposed to effective land management. This is due to the neoliberal framework of market governance of land which in some situations ignores the people in whose interest land should be managed.

I will set out the political economy of the role of the chief towards impactful/transformative development.

I will be guided by the question of whether the chief is truly a development agent? And if so, what specific role can they play to promote not just development but impactful/transformative development that will reflect in the lives of their people.

Chair, I will argue that chiefs must play an enhanced role in land management as opposed to a one-off disposition of land by virtue of private acquisition.

All countries including Ghana need to be able to meet their citizenry’s basic needs of employment, food, energy, water and sanitation. Sustainable development principles encourage us to conserve and enhance our resources. Indeed, sustainability is important for economic growth and sustainable development practices help to protect our natural resources, the protection of which resources is very crucial to the preservation of life. Economies rely heavily on trade, much of which depends on natural resources to produce goods or provide services. The goal of sustainable development is to secure good living opportunities for present and future generations. Article 36 of the 1992 Constitution sets out the State’s responsibility to guarantee efficient management of the national economy so people can exercise and enjoy their economic rights and the ownership of property among others.

Sustainable development is an organising principle that aims to meet human development goals while also enabling natural systems to provide necessary resources and ecosystem services to humans.

Sustainable development has been defined as development that meets the needs of the present, without comprising the ability of future generations to meet their own needs.

In other words, it is a way of organising society by which it can exist for a long duration without compromising the availability of resources for future generations for sustainable development. Factors such as preserving the environment and natural resources along with maintaining social and economic equality need to be followed.

It is not a new concept and has been followed by many cultures over the course of history with the aim of maintaining a balance between man and nature as well as the economy. Sustainable development looks to create a balance between economic, environmental and social needs.

The objectives of Sustainable Development are:

i. Economic Growth – for creating an economy that is sustainable and growing in the right direction.

ii.Protecting the environment – this objective focuses on contribution by humans towards protecting and enhancing the natural environment by minimising pollution and waste, also working towards reducing the global carbon footprint and

iii.Social Inclusion – this objective focuses on providing the facility of housing for future generations and assisting in creating healthy, strong and vibrant global connections.

IMPORTANCE OF SUSTAINABLE DEVELOPMENT

Why the need for Sustainable Development?

The importance of sustainable development resounds in the following:

i.The judicious use of available resources and working towards maintaining the ecological balance;

ii.To prevent degradation of the environment and laying emphasis on protecting the environment; and

iii.To prevent over-exploitation of resources.

HISTORY OF SUSTAINABLE DEVELOPMENT

The concept of sustainable development formed the basis of the United Nations Conference on Environment and Development held in Rio de Janeiro in 1992. The summit marked the first international attempt to draw up action plans and strategies for moving towards a more sustainable pattern of development. Sustainable development was conceived of as the solution to the problems of environmental degradation discussed by the Brundtland Commission in the 1987 report titled Our Common Future.

The remit of the Brundtland Report was to investigate the numerous concerns that had been raised in previous decades namely that human activity was having severe and negative impact on the planet and that patterns of growth and development would be unsustainable if they continued unchecked.

The concept of sustainable development received its first major international recognition in 1972 at the United Nations Conference on the Human Environment held in Stockholm. The term was not referred to explicitly, nonetheless, the international community agreed to the notion now fundamental sustainable development that both development and the environment hitherto addressed as separate issues could be managed in a mutually beneficial way.

The term was popularised 15 years later in Our Common Future, the report of the World Commission on Environment and Development which included what is described the “classic” definition of sustainable development as “development which meets the needs of the present without compromising the ability of future generations to meet their own needs”.

It was not until the United Nations Conference on Environment and Development (also known as the Earth Summit) held in Rio de Janeiro in June 1992, however, that major world leaders recognised sustainable development as the major challenge the world faces today.

SUSTAINABLE DEVELOPMENT GOALS (SDGS)

In 2015, the 17 Sustainable Development Goals (SDGs) also known as Global Goals were adopted by all United Nations Member states. The goals and targets are universal in that they apply to all countries around the world.

The 17 Sustainable Development Goals (SDGs) with their 169 targets, form the core of the 2030 Agenda. They balance the economic, social and ecological dimensions of sustainable development and place the fight against poverty and sustainable development on the same agenda for the first time.

In June 2022, world leaders met to review the journey from Stockholm 1972 to Stockholm+50. At that meeting world leaders recognised that no single entity can realise the goals of sustainable development. The meeting resolved “that humanity’s very future depends on solidarity, trust and ability to work together as a global family to achieve a common goal. No community or country however powerful, can solve its challenges alone. Multilateral action has achieved an enormous amount over the past 75 years. Our Common Agenda must be a starting point for ideas and initiatives that build on these achievements. In much the same way, the concerted efforts of all stakeholders in our development agenda must be enhanced and harnessed towards the achievement of social justice and economic opportunity. There is a need to work together for our common agenda.”

The Our Common Agenda in sum is an agenda of action designed to accelerate the implementation of existing agreements including the Sustainable Development Goals. On 9^th March 2023 the United Nations Secretary- General issued a policy brief dubbed “Future Generations”. The policy brief contains suggestions for practical steps to fulfil member states’ long-standing commitment to meet the demands of the present in a way that safeguards the interests of future generations and preserves their ability to effectively enjoy all human rights.

“What we do for future generations is also what we need to do for ourselves which is to take challenges and opportunities that lie in the future far more seriously than we currently do”. There is no trade-off between meeting the needs of the present and taking into account the needs of the future. Conscious efforts to consider the future will leave generations better off. The brief defines “future generations” as “all people who will come after us”. Their lives and eventual ability to effectively enjoy all human rights and meet their needs are already influenced by our actions today. According to the policy brief, these people are distinct from and by current demographic projections will be vastly more numerous than present generations. More than 10 billion people are projected to be born before the end of this century alone, predominantly in countries that are currently low or middle income”.

“The point of a focus on future generations is that they are not yet alive to tell us what they need or think. There is a great deal about them that we cannot presume to know. But we do know that an obligation to act in a way that preserves their ability to effectively enjoy all human rights and determine their own needs in the future has already been enshrined in countless international agreements and in the very concept of sustainable development defined as meeting “the needs of the present without compromising the ability of the future generations to meet their own needs”.

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